The Divorce Act Changes Explained

Relocation

Best interests of child – additional factors to be considered

Reasons for the relocation
(Section 16.92(1)(a), Divorce Act)

New section

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;
Old section

None.

What is the change

When determining the best interests of the child in a relocation situation, the court must consider specific factors, in addition to those listed in s 16. The first factor is the reason for the relocation.

Reason for the change

Relocation is a highly contested matter in family law. Providing an explicit list of factors that the court must consider will help improve the consistency and predictability of outcomes. Parties will be better able to prepare their relocation proposals and objections. No factor is determinative, but factors provide guidance to parents and courts. British Columbia and Nova Scotia include similar factors in their relocation provisions.

The first factor (reasons for the relocation), explicitly overrules the Supreme Court of Canada decision in Gordon v Goertz,[1996] 2 SCR 27. The Court held that the reasons for a relocation should generally not be considered. However, the reasons for a relocation can relate directly to the best interests of the child. For example, a relocation might enable a parent to earn a significantly higher salary, improving the financial circumstances of the child. There are many reasons for relocations, and it can be important for the court to be aware of these.

When

March 1, 2021.